Liability of road damage questioned 

Misuse of a county road by a 1.5 million pound crane and a subcontracted payloader carrying 25,000 pounds resulted in a patchy road, with crumbled shoulders, and upwards of $500,000 in damages.

That’s how Road Boss Casey Dittrich explained what happened to a two-mile stretch of 519 Avenue, two miles north of U.S. Hwy. 275, not included in a road use agreement between Invenergy, LLC, and Antelope County, during the Board of Commissioners meeting Tuesday, June 26.

But the question at the center of everything is how much of the degradation was pre-existing, how much was caused by Invenergy subcontractors, as part of the Upstream Wind Energy project and does prior condition matter if it was a violation of the road use agreement.

Dittrich’s concern grew initially, he said, when he met a 966M payloader carrying 20,000 pounds of clay in a 5,000 pound bucket on Wednesday, June 13.

Upon the vehicles approaching, Dittrich said the payloader had to drive on the shoulder and into the ditch.

Meeting the truck twice on the road, Dittrich said, “Both times our exchanges were dangerous.”

Dittrich drove down 519 Avenue to survey damage incurred by a base-mid crane sometime before Tuesday, June 12, after Upstream Wind Energy Project manager Marlin Conroy notified him of the situation.

The initial damage, before the payloader and multiple other heavy vehicles drove across the two-mile stretch, was “passable”, according to Dittrich.

Dittrich spoke with Conroy, again, following the encounter with the payloader and estimated the operator “bounced down the road 10 to 12 times” to haul 18 inches of dirt to the future site of the crane crossing.

After Conroy informed Dittrich multiple use of the road would be required again, Dittrich drove to the site, Tuesday, June 19 to witness the crane crossing.

He said the 1.5 million pound crane sat on the road for nearly two hours and he could see damage as the crane was removed.

Conroy called Dittrich that evening and said the road was impassable and unsafe.

“They left compaction marks 52 feet apart. I would say the tracks are five feet wide. It compacted the surface of the road 10 inches,” Dittrich said. “If you were to drive over, it would load your suspension, launch you, load you again. If it was a motorcycle, you would be over the handlebars.”

Dittrich said signs were put up and the road remained closed for the night.

Several road department employees, along with Dittrich, spent seven hours at the site Wednesday, June 20 filling holes with asphalt, laying steel plates and a four inch overlay and signing the area.

Despite the 25 mph advisory signs and barrels, Dittrich said he witnessed vehicles “flying down that road”.

The condition of the road will stay as is, according to Dittrich, until Invenergy contracts a repair company.

“There is no question that Invenergy is responsible for that damage. They were outside of the road use agreement,” said Dittrich.

He continued to say he documented the damage with photos and video, however, there is no documentation of the condition of the road before the payloader operator drove it because it was not included in the road use agreement.

Dittrich said Conroy has been amenable, but they do not agree on which part of the road requires repair.

Without a prior condition report on the road, “there is no way that Marlin (Conroy) and I can possibly say what was done by the loader,” said Dittrich.

Dittrich feels the burden of proof should fall on Invenergy.

“I cannot say enough good things about Marlin (Conroy), but right now he cannot control their subcontractors,” said Dittrich.

Invenergy has the ability to fine subcontractors $1,000 for using roads excluded from the road agreement.

Commissioner Charlie Henery said responsibility should fall on the subcontractor.

“I think Marlin (Conroy) and his people have done everything they could except have a handle on the subcontractor,” said Henery.

“There’s no question that they’re in violation, it’s just how are we going to handle it,” said Dittrich.

Although, the road hadn’t been worked on in years, Dittrich said he would have prioritized a hundred miles of road, before fixing those two miles on 519 Avenue.

“The crane crossing is beyond the worst damage I’ve ever seen on an asphalt road. I know it happened south of Elgin, but I think this is extreme,” said Dittrich.

The damage south of Elgin was a seven-mile stretch on 836 Road, which occurred during Prairie Breeze I and cost Invenergy approximately $2 million.

He continued to say it is outside the county road department’s capabilities to repair the road to its prior condition.

Brunswick resident Dean Smith, who was seated in the audience, said, “They’re (Invenergy) in violation. You have no teeth at all in your agreement?”

Smith advanced from the primary election and is currently running for District 1 commissioner. He will face incumbent Jerry Schwager in the general election in November.

Smith asked if they were bonded.

Conroy replied the subcontractors are bonded.

“Then we start drawing off their bond. They violated it. When you’re in violation of a contract, you either come up with a new agreement or you cease and desist,” said Smith. “If our county attorney doesn’t have backbone enough to stand up for the county then maybe we need to find a different county attorney or legal representation. They violated the agreement. Plain and simple.”

Smith pointed out the crane had to cross U.S. Hwy. 14. Then questioned why, if the crane was disassembled to cross the state highway, is the county road treated differently.

Conroy said permitting is much different on state highways.

Smith suggested the commissioners look into mirroring state requirements for roads, in the future.

“Because of Invenergy, some of my tax dollars aren’t going to get part of those other hundred miles fixed that need fixed. We’ve got to fix what Invenergy has done,” said Smith. “There is no debate. They violated the road agreement. They are clearly, 100 percent liable.”

Chairman LeRoy Kerkman referenced the high quality roads south of Elgin, which had been repaired by Invenergy.

“I know you’re not for the wind towers. That’s your issue. I don’t care,” said Kerkman.

Smith questioned why his stance on wind farms was brought up.

“I’m talking about a violation of a road agreement that should be a legal document,” said Smith.

Henery asked if the use of the road that was not in the road agreement was a true violation or if it was “an extension of the road agreement.”

Antelope County Clerk Lisa Payne stood and said she would call County Attorney Joe Abler to assist in clarification of matters.

Commissioner Eddie Schindler asked how the payloader damage was any different than regular commercial traffic.

“If we open that up then we might as well throw the road use agreement in the trash,” said Dittrich. “It was misuse, whether it was Klabenes’ feed yard or the wind towers. The difference is these guys presented a road use agreement.”

Conroy said, “We know we are responsible for the damage there. We aren’t shying away from that. We know we have to fix where the crane crossed and we know there was damage from the payloader.”

Conroy said the only question that remains is how much damage existed prior to degradation from their use.

Abler said if this is pursued in litigation, the burden of proof will partially fall on the county.

If Invenergy knew they planned to use this road, Abler said, it should have been included in the road use agreement. Even after the approval of the road use agreement, they could have asked for an amendment to include it.

“Your road agreement was put in place because we knew the specific traffic to these projects was going to cause damage and possible liability to the county. Therefore, we entered the road agreement to offer the county, and the board here, some protection,” said Abler.

Dittrich said the board needs to determine how they want the road repaired before he can move forward with estimations.

Conroy said repair and replacement are two different things.

“Hot mix, shoulder-to-shoulder for two miles, is not repair. That’s replacement of the road,” he said. “I don’t have any problem with repairs or with a cost-share with the county if the county believes hot mix of the two miles is what’s necessary.”

Henery asked to offer his opinion.

“Marlin, you’re going to do the whole road…You did not have the road on the agreement, which you should have, then you’d be patching it,” said Henery.

Henery suggested Conroy speak with the subcontractor and come back to the board with an offer for repair.

Kerkman said “that’s fair”.

Schwager agreed.

Later in the evening on Tuesday, June 26, Dittrich filed a formal written complaint with Antelope County Zoning Administrator Liz Doerr, against Invenergy for the violation of the conditional use permit and the road use agreement.

The commissioners plan to discuss the matter further Tuesday, July 3, at which point Invenergy representatives will make an offer for repair.

Possible amendments to the road use agreement are expected.